When applying for a job, there is no general rule or law that places an obligation on job applicants to disclose their criminal history unless they are specifically asked by the potential employer. During the recruitment process, there are instances where one is required to disclose certain information to the potential employer, to assist the potential employer in making informed decisions about the applicant’s eligibility for a specific position.
The Employment Equity Act 55 of 1998, was enacted to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination. It is not considered a discrimination or unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.[1]
The Labour Relations Act 66 of 1995, through the Code of Good Practice, provides that dishonesty is a ground for dismissal. This also applies if a conduct of dishonesty was made during the job application process.[2]
In the case of Office of the Chief Justice Republic of South Africa v General Public Service Sector, Mr Siphephelo Luthuli had applied for two positions, in November 2019, which were advertised by the Office of the Chief Justice (OCJ). During varying stages of the application process, Luthuli was required to indicate if:
- “He has ever been convicted of a criminal offence or been dismissed from employment”;
- “Disclose if he has ever been criminally charged and, if yes, he was required to provide the details of the charge”; and
- He was required to “disclose if he had any criminal record or charges against him or pending against him. If yes, he was required to disclose the circumstances of the aforesaid criminal record or charges.”
Luthuli responded ‘No’ to all aforementioned questions. Luthuli had also scored the highest points in the interviews.[3]
However, the OCJ established that in August 2019, Luthuli had been arrested for driving while under the influence of alcohol, ultimately resulting in the OCJ’s decision to remove Luthuli as a viable applicant due to his failure to disclose this criminal matter. In response, Luthuli referred an unfair labour practice dispute to the General Public Service Sector Bargaining Council – which ruled in Luthuli’s favour. In turn, the OCJ requested a review of the arbitration award which was in favour of Luthuli. The Labour Court found that the job applicant had a duty to disclose a pending criminal case, regardless of the status of the investigation of the case or the decision by the National Prosecuting Authority, as the employer had explicitly asked for this disclosure.
The Court has consistently emphasised the importance of trust between an employee and the employer. In the matter of ABSA Bank Ltd v Naidu, the Court upheld the court a quo’s sentiments in that dishonesty has a corroding effect to the trust which the employer is entitled to expect from its employees.[4]
In essence, one should disclose pertinent information when requested to do so, regardless of how minor one might perceive the issue to be. Honest disclosure builds the foundation of trust for employment relationships.
At Tshaya Mashabela Attorneys we have capable attorneys who are able to assist you with all your labour related matters.
Author: Phindulo Munyai | Associate Attorney
References:
- Employment Equity Act 55 of 1998, as amended
- Labour Relations Act 66 of 1995, as amended code of good practice
- Office of the Chief Justice Republic of South Africa v General Public Service Sector & Others [2025] ZALCPE 15 (6 August 2025)
- ABSA Bank Ltd v Naidu [2015] 1 BLLR 1 (LAC)
